Copyright 2021 © Lexipol - Rev 12/28/2020
MASTER SERVICE AGREEMENT
Agency's Name:
Agency's Address:
Attention:
Lexipol's Address:
Effective Date:
Anaheim Police Department
425 S. Harbor Blvd.
Anaheim, CA 92808
2611 Internet Boulevard, Suite 100
Frisco, Texas 75034
(to be completed by Lexipol upon receipt of signed Agreement) This Master Service Agreement (the “Agreement”) i s entered into b y and between Lexipol, LLC, a Delaware limited liability company ("Lexipol"), which may include one o r more Lexipol subsidiary entities, and the Agency identified above.
This Agreement consists of:
(a) This Cover Sheet
(b) Exhibit A - Selected Services and Associated Fees
(c) Exhibit B - Terms and Conditions Specific t o this Agreement (d) Exhibit C - Agency-Specific Terms and Conditions
Each individual signing below represents and warrants that they have full and complete authority to bind the party on whose behalf they are signing to all terms and conditions contained in this Agreement.
Anaheim Police Department Lexipol, LLC
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date Signed: Date Signed:
9-1-2022
Jan Roos
Vice President & General Counsel
7-25-2022
Copyright 2021 © Lexipol - Rev 12/28/2020
Exhibit A
SELECTED SERVICES AND ASSOCIATED FEES
Agency is purchasing the following:
Year 1 Renewal Prorated to Align
with Current LE Subscription
9/1/2022-6/30/2023
QTY DESCRIPTION UNIT PRICE EXTENDED
1 Annual Jail Policy Manual & Daily Training Bulletins (Start: 9/1/2022 End:
6/30/2023)
USD 3,925.50 USD 3,925.50
1 Annual Jail Supplemental Manual(s) (Start: 9/1/2022 End: 6/30/2023) USD 726.00 USD 726.00 Subscription Line Items Total USD 4,651.50
USD 4,651.50
Year 1 Renewal Prorated to Align with Current LE Subscription 9/1/2022-6/30/2023 TOTAL: USD 4,651.50 Year 2 Renewal 7/1/2023-
6/30/24
QTY DESCRIPTION UNIT PRICE EXTENDED
1 Annual Jail Policy Manual & Daily Training Bulletins (Start: 7/1/2023 End:
6/30/2024)
USD 4,875.47 USD 4,875.47
1 Annual Jail Supplemental Manual(s) (Start: 7/1/2023 End: 6/30/2024) USD 901.69 USD 901.69 Subscription Line Items Total USD 5,777.16
USD 5,777.16
Year 2 Renewal 7/1/2023-6/30/24 TOTAL: USD 5,777.16
Year 3 Renewal 7/1/2024-
6/30/25
QTY DESCRIPTION UNIT PRICE EXTENDED
1 Annual Jail Policy Manual & Daily Training Bulletins (Start: 7/1/2024 End:
6/30/2025)
USD 5,046.11 USD 5,046.11
1 Annual Jail Supplemental Manual(s) (Start: 7/1/2024 End: 6/30/2025) USD 933.25 USD 933.25 Subscription Line Items Total USD 5,979.36
USD 5,979.36
Year 3 Renewal 7/1/2024-6/30/25 TOTAL: USD 5,979.36
Copyright 2021 © Lexipol - Rev 12/28/2020
Year 1 Renewal 7/1/2022-6/30/2023 TOTAL:
Year 2 Renewal 7/1/2023-
6/30/2024
QTY DESCRIPTION UNIT PRICE EXTENDED
1 Annual Law Enforcement Policy Manual & Daily Training Bulletins (Start:
7/1/2023 End: 6/30/2024)
USD 23,988.31 USD 23,988.31
1 Annual Law Enforcement Supplemental Manual(s) (Start: 7/1/2023 End:
6/30/2024)
USD 3,083.47 USD 3,083.47
1 Annual Law Enforcement Policy Update Management (Start: 7/1/2023 End: 6/30/2024)
USD 11,906.61 USD 11,906.61
1 Annual Law Enforcement Daily Training Bulletin Management (Start:
7/1/2023 End: 6/30/2024)
USD 4,498.57 USD 4,498.57
Subscription Line Items Total USD 43,476.96
USD 43,476.96
Year 2 Renewal 7/1/2023-6/30/2024 TOTAL: USD 43,476.96
Year 3 Renewal 7/1/2024-
6/30/2025
QTY DESCRIPTION UNIT PRICE EXTENDED
1 Annual Law Enforcement Policy Manual & Daily Training Bulletins (Start:
7/1/2024 End: 6/30/2025)
USD 24,827.90 USD 24,827.90
1 Annual Law Enforcement Supplemental Manual(s) (Start: 7/1/2024 End:
6/30/2025)
USD 3,191.39 USD 3,191.39
1 Annual Law Enforcement Policy Update Management (Start: 7/1/2024 End: 6/30/2025)
USD 12,323.34 USD 12,323.34
1 Annual Law Enforcement Daily Training Bulletin Management (Start:
7/1/2024 End: 6/30/2025)
USD 4,656.02 USD 4,656.02
Subscription Line Items Total USD 44,998.65
USD 44,998.65
Year 3 Renewal 7/1/2024-6/30/2025 TOTAL: USD 44,998.65
QTY DESCRIPTION UNIT PRICE EXTENDED
1 Annual Law Enforcement Policy Manual & Daily Training Bulletins (Start:
7/1/2022 End: 6/30/2023)
USD 23,177.11 USD 23,177.11
1 Annual Law Enforcement Supplemental Manual(s) (Start: 7/1/2022 End:
6/30/2023)
USD 2,979.20 USD 2,979.20
1 Annual Law Enforcement Policy Update Management (Start: 7/1/2022 End: 6/30/2023)
USD 11,503.97 USD 11,503.97
1 Annual Law Enforcement Daily Training Bulletin Management (Start:
7/1/2022 End: 6/30/2023)
USD 4,346.44 USD 4,346.44
Subscription Line Items Total USD 42,006.72
USD 42,006.72
USD 42,006.72
*The above subscription services, and when applicable, implementation services, shall be invoiced by Lexipol (or one of its subsidiaries, where applicable) upon the execution of this Agreement. *Jail pricing is based on 15 Jail Beds.
The foregoing pricing has been prorated for the benefit of Agency and Agency therefore agrees that they will waive the right to cancel this agreement until the end of the first renewal period.
*Law Enforcement pricing is based on 398 Law Enforcement Sworn Officers.
*The above subscription services, and when applicable, implementation services, shall be invoiced by Lexipol (or one of its subsidiaries, where applicable) upon the execution of this Agreement.
Exhibit B
Terms and Conditions of Service
1. Definitions. For purposes of Lexipol’s Terms and Conditions of Service (the “Terms”), each of the following capitalized terms will have the meaning included in this Section. Other capitalized terms are defined within their respective sections below. Depending on the selected Service(s), Agency may receive support from, and be invoiced by, a Lexipol subsidiary, including The Praetorian Group and/or Cordico Inc.
1.1 “Agency” means the department, agency, office, company, or other entity purchasing and/or otherwise subscribing to Lexipol products or services.
1.2 “Agreement” means the combination of (a) the cover sheet to which these Terms are attached; (b) Lexipol’s subscription and pricing information sheets, which are typically included as an Exhibit A (“Services Being Purchased and Related Fees”) or as set forth in any similar pricing sheet (including by way of addendum); and (c) these Terms.
1.3 “Derivative Work(s)” means work(s) based on Lexipol’s Subscription Materials, or any substantive portion thereof. Derivative Works include revision, modification, abridgement, condensation, expansion, or any other form in which the Subscription Materials or any portion thereof are recast, transformed, or adapted. For purposes of the Agreement, a Derivative Work also includes any compilation that incorporates any portion of the Subscription Materials. Further, “Derivative Work” includes any work considered a “derivative work” under United States copyright law.
1.4 “Effective Date” means the date specified on the c over sheet to which these Terms are attached, or as otherwise expressly set forth and agreed upon by Lexipol and Agency in a writing and defined as the “Effective Date.”
1.5 “Initial Term” means the period commencing on the Effective Date and continuing for the length of time indicated on the cover sheet or subscription and pricing sheet provided by Lexipol. If the Initial Term is not so indicated, the default Initial Term is one (1) year from the Effective Date.
1.6 “Service(s)” means all Lexipol product(s) or service(s), including one -time and recurring (subscription) services, as may be offered by Lexipol and/or its subsidiaries and affiliates from time to time.
1.7 “Subscription Materials” means all policy manuals, supplemental publications, daily training bulletins, written content, images, videos, and all other data and multimedia provided by Lexipol and/or its licensors through the Services.
2. Term. The Agreement becomes enforceable upon signature by Agency’s authorized representative. Following the Initial Term, Agency may renew the Agreement for up to two successive one- year periods thereafter (each a “Renewal Term”) by providing written notice of its intent to renew to Lexipolat least thirty (30) days prior to expiration of the then -current term. The Initial Term and all Renewal Terms collectively comprise the “Term” of the Agreement.
3. Termination.
3.1 For Cause. The Agreement may be terminated by either party, effective immediately, (a) in the event that the other party fails to discharge any obligation or remedy any default under the Agreement for a period of more than thirty (30) calendar days after it has been given written notice of such failure or default; or (b) in the event that the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to the bankruptcy laws of any applicable jurisdiction.
3.2 For Convenience. The Agreement may be terminated for convenience (including lack of appropriation of funds by Agency) upon thirty (30) days written notice. Note: fees already paid for Services are not eligible for refund, proration or offset in the event of Agency’s termination for convenience.
Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
2 4. Effect of Expiration or Termination. Upon the expiration or termination of the Agreement for any reason, Agency’s access to Lexipol’s Services shall cease. Termination or expiration of the Agreement shall not, however, relieve either party from any obligation or liability that has accrued under the Agreement prior to the date of such termination or expiration, including payment obligations. The right to terminate the Agreement shall be in addition to, and not in lieu of, any other remedy, legal or equitable, to which the parties are entitled at law or in equity. The provisions of Sections 1 (Definitions), 6 (Service-Specific Terms), 8 (Privacy Policy), 8 (Warranty Disclaimer), 9 (Confidenti ality), 10 (Warranty Disclaimer), 11 (Limitation of Liability), 12 (General Terms), and this Section 4 shall survive the expiration or termination of the Agreement for any reason.
5. Fees and Invoicing . Unless otherwise agreed upon in writing, Lexipol (or, i f applicable, The Praetorian Group or Cordico Inc.) will invoice Agency at the commencement of the Initial Term and thirty (30) days prior to each Renewal Term. Agency will pay to Lexipol the fee(s) specified on each invoice within thirty (30) days following receipt of the invoice. All invoices will be sent to Agency at the address specified on the cover sheet to which these Terms are attached or as otherwise designated by Agency in writing. All payments will be made by electronic transfer of immediately available funds or by mailing a check to Lexipol at 2611 Internet Blvd, Ste 100, Frisco, TX 75034 (Attn: Accounts Receivable). Lexipol reserves the right to increase fees for Renewal Terms. All amounts required to be paid under the Agreement are exclusive of taxes and similar fees now in force or enacted in the future. Unless otherwise exempt, Agency is responsible for and will pay in full all taxes properly imposed related to its receipt of Lexipol’s Services, except for taxes based on Lexipol’s net income. In the event any amount owed by Agency is not paid when due, and such failure is not cured within ten (10) days after written notice thereof, then in addition to any other amount due, Agency shall pay a late payment charge on the overdue amount at a rate equal to the lower of (a) one percent (1%) per month, or (b) the highest rate permitted by applicable law.
6. Service-Specific Terms. The following sections apply to specific Lexipol Services:
6.1 Policy. Lexipol contends that its policy Subscription Materials and Knowledge Management System (“KMS”) are proprietary, protected under U.S. copyright, trademark, patent, and/or other applicable laws, and Lexipol reserves all rights not expressly granted in these Terms. Agency may prepare Derivative Works using Lexipol’s Subscription Materials, but Lexipol shall remain the sole owner of all right, title and interest in and to them, including all copyrights, intellectual property rights, and other proprietary rights therein or pertaining thereto. Agency shall retain a perpetual, personal, non-sublicensable and non-assignable right to use the Subscription Materials for Agency’s internal purposes but will not remove any copyright notice or other proprietary notice of Lexipol appearing thereon. Agency acknowledges and agrees that Lexipol shall have no responsibility to update such Subscription Materials beyond the Term of the Agreement and shall have no liability whatsoever for Agency’s creation or use of Derivative Works.
Agency acknowledges and agrees that all policies and procedures it implements have been individually reviewed and adopted by Agency, that neither Lexipol nor any of its agents, employees, or representatives shall be considered “policy makers” in any legal or other sense .Lexipol’s KMS Service is subject to the Service Level Agreement attached to these Terms.
6.2 Learning. Lexipol contends that it ’s Learning Management System (“LMS”), offered by Praetorian Digital, is a proprietary Service protected under U.S. copyright, trademark, patent, and other laws. Lexipol and its licensors retain all rights, title, and interest in and to the LMS (including, without limitation, all intellectual property rights), including all copies, modificat ions, extensions, and Derivative Works thereof. Agency’s right to use the LMS is limited to the rights expressly granted in the Agreement.
Agency Data, defined as data owned by Agency prior to the Effective Date or which Agency provides during the Term for purposes of identifying authorized users, confirming agency or department information, or other purposes that are ancillary to receipt of the Service, remains Agency’s property. Lexipol retains no right or interest in Agency Data and shall return or destroy Agency Data following termination of the Agreement. Lexipol’s LMS Service is subject to the Service Level Agreement attached to these Terms.
Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
3 6.3 Wellness. This Section applies when Agency subscribes to Lexipol’s Wellness Application (“Wellness App”) offered by Cordico®. All Subscription Materials delivered by the Wellness App, including but not limited to all object and source code, all information created, developed, or reduced to practice, and all written, image -based, or video -based content underlying the Wellness App that is not specifically provided by Agency is the proprietary intellectual property of Lexipol and/or its suppliers or licensors, protected to the maximum extent permitted by trademark, copyright, and patent laws. Agency is granted a nonexclusive limited right to access the Wellness App during the Term. If the Agreement is terminated or expires for any reason, Agency shall lose access to the Wellness App and to all associated Subscription Materials and shall discontinue all use of the same for any purpose. Nothing in this section or these Terms shall be construed as conferring any right of ownership or use to the Wellness App, whether by e stoppel, implication or otherwise.
6.4 Grants. This Section applies when Agency selects Lexipol’s Grant Writing, Consulting, and/or GrantFinder services. For Grant Writing services, Agency takes full responsibility for submitting information reasonably required by Lexipol’s grant writing team in a timely manner (at least five (5) days prior to the applicable grant application close date). Agency is responsible for all submissions of final grant applications by grant deadlines, but Lexipol shall be considered Agency’s duly authorized representative for submissions where applicable. Failure to submit requested materials to write grant applications on time will result in rollover of project services and fees to next grant application cycle; not a refund of the fees.
Requests for cancellation of Grant Writing services will result in a 50% fee of the total value of the service.
Invoices for Grant Writing services will be sent as soon as work begins for the applicable target grant.
Complete payment must be received no later than thirty (30) days after receipt of invoice. In the event Agency has not made timely payment on an invoice, Lexipol reserves the right to suspend all grant Services to Agency until past-due payments are received in full, and may terminate Agency’s access to GrantFinder, if applicable. Invoices over thirty (30) days past due may be charged a twenty -five dollar ($25) late fee.
6.5 Generally; Injunctive Relief. Nothing in the Agreement shall be construed as conferring any rights or license to Lexipol’s trade secrets, intellectual property, Confidential Information, Subscription Materials, KMS, LMS, Wellness App, or the software underlying such products and services, whether by estoppel, implication or otherwise. Agency may not, and may not assist others to, decompile, disassemble, reverse engineer, or otherwise attempt to discover any object code, source code, or pro prietary data underlying the Services. Agency grants all rights and permissions in or relating to Agency Data as are necessary to Lexipol to enforce the Agreement, exercise Lexipol’s rights, and perform Lexipol’s obligations hereunder. Agency acknowledges that a breach or threatened breach of any portion of this Section may cause irreparable harm and shall entitle Lexipol to injunctive relief in addition to any other available remedy.
7. Account Security. The rights to access and use the Services under the Agreement are personal and unique to Agency and Agency shall not assign or otherwise transfer any such rights to any other person or entity without Lexipol’s written consent . Except as set forth herein, Agency remains solely responsible for maintaining the confidentiality of Agency’s username(s) and password(s) and the security of Agency’s account(s), meaning the account by which Agency accesses the Services. Agency will not permit access to Agency’s account(s) or use of Agenc y’s username(s) and/or password(s) by any person or entity other than authorized Agency personnel. Agency will immediately notify Lexipol if Agency becomes aware that any person or entity other than authorized Agency personnel has used Agency’s Account or Agency’s username(s) and/or password(s).
8. Privacy Policy. Lexipol will hold Agency Data in confidence unless required to provide access in accordance with a court order, government agency request, or other legal process such as a Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request. Lexipol will use commercially reasonable efforts to ensure the security of all Agency Data. Lexipol’s systems use the Secure Socket Layer (SSL) Protocol for Lexipol Services, which encrypts information as it travels between Lexipol and each Agency. However, Agency acknowledges and agrees that data transmission on the internet is not always 100% secure and Lexipol cannot and does not warrant that information Agency transmits to or through the Services is 100% secure. Agency acknowledges that Lexipol may provide view-only access and summary information (which may include number of policies developed or in development, percentage of staff reviews of developed policies and DTBs) to Agency’s affiliated Risk Management Authority, Insurance Pool or Group, or Sponsoring Association if they are actively funding member Agency Subscription Fees.
Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
4 9. Confidentiality. During the term of the Agreement, either party may be required to disclose information to the other party that is marked “confidential” or is of such a type that the confidentiality thereof is reasonably apparent (collectively, “Confidential Information”). The receiving party will: (a) limit disclosure of any Confidential Information of the other party to the receiving party’s directors, officers, employees, agents and other representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the Services; (b ) advise its personnel and agents of the confidential nature of the Confidential Information and of the obligations set forth in the Agreement; (c) keep all Confidential Information confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information to any third party unless expressly authorized by the disclosing party. Notwithstanding the foregoing, a party may disclose Confide ntial Information pursuant to a valid governmental, judicial, or administrative order, subpoena, discovery request, regulatory request, Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request, or similar method.
10. Warranty Disclaimer. ALL SERVICES AND SUBSCRIPTION MATERIALS ARE PROVIDED "AS- IS" AND LEXIPOL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON -INFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
11. Limitation of Liability. In no event shall Lexipol be liable for any indirect, incidental, consequential, special, exemplary damages, or lost profits, even if Lexipol has been advised of the possibility of such damages. The limitations set forth in this Section shall apply whether the subject claim is based on breach of contract, tort, strict liability, product liability or any other theory or cause of action.
12. General Terms.
12.1 General Interpretation. The language used in the Agreement and these Terms shall be deemed to express the mutual intent of Lexipol and Agency. The Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under the Agreement.
12.2 Invalidity of Provisions . Each of the provisio ns contained in the Agreement and these Terms is distinct and severable. A declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. Further, if a court of competent jurisdiction finds any provision of the Agreement to be invalid or unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intention as reflected in such provision to the maximum extent possible.
12.3 Waiver. Lexipol’s failure to exercise, or delay in exercising, any right or remedy under any provision of the Agreement shall not constitute a waiver of such right or remedy.
12.4 Governing Law. The Agreement shall be construed in accordance with, and governed by, the laws of the State in which Agency is located, without giving effect to any choice of law doctrine that would cause the law of any other jurisdiction to apply.
Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
5 12.5 Compliance with Laws . Each party shall maintain compliance with all applicable laws, rules, regulations, and orders promulgated by any federal, state, or local government body or agency relating to its obligations pursuant to the Agreement and these Terms.
12.6 Notices. Any notice required by the Agreement or given in connection with it shall be in writing and shall be made by certified mail (postage prepaid), recognized overnight delivery service, or (if mutually agreed upon) by email to authorized recipients at such address as each party may indicate from time to time. Alternatively, electronic mail or facsimile notice to established and authorized recipients is acceptable when acknowledged by the receiving party.
12.7 Entire Agreement . The Agreement, i ncluding these Terms, embodies the entire agreement and understanding of the parties hereto and expressly supersedes all prior written and oral agreements and understandings with respect to the subject matter hereof. No representation, promise, or statement of intention has been made by any party hereto that is not embodied in the Agreement. Terms and conditions set forth in any purchase order or any other form or document that are inconsistent with or in addition to the terms and conditions set forth in th e Agreement are hereby objected to and rejected in their entirety, regardless of when received, without further action or notification, and shall not be considered binding unless specifically agreed to in writing by both parties. No amendment, modification, or supplement to the Agreement shall be binding unless it is in writing and signed by the party sought to be bound thereby.
12.8 Counterparts. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same document for purposes of the Agreement.
Lexipol Service Level Agreement for Cloud-Based Services
1. Response Times. For issues relating to Lexipol’s online, cloud-based Services (e.g. KMS, LMS, Wellness), Lexipol will make an industry standard and commercially reasonable effort to respond promptly (via Lexipol’s Normal Support Channels) within two (2) Business Days after receipt.
2. Uptime Commitment. The Uptime Percentage for the Service will be ninety-nine and five-tenths percent (99.5%) (the “Uptime Commitment”). Subject to the exclusions described in below, “Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any annual billing cycle in which Agency’s selected Service(s) are unavailable out of the total number of minutes in that billing cycle. “Unavailable” and “Unavailability” mean that, in any 1 -minute period, all connection requests received by Agency failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1 -minute period (i.e. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Yearly Uptime Percentage will be measured based on the industry standard monitoring tools.
3. Exclusions from Uptime Percentage . All Service Unavailability resulting from the following will be excluded from calculation of Uptime Percentage: (a) Regularly-scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by Lexipol at least twenty-four (24) hours in advance via Lexipol’s support channels (Lexipol typically schedules such regularly scheduled maintenance once per month); (b) Any failures of the Lexipol Standard and Custom Reporting Services that does not exceed six (6) hours per 3-month period and is communicated by Lexipol at least twenty-four (24) hours in advance via Lexipol’s Normal Support Channels; (c) Any issues with a third-party service to which Agency subscribes but does not control; (d) Any problems not caused by Lexipol that result from, computing or networking hardware, other equipment or software under Agency’s control, the Internet, or other issues with electronic communications; (e) Lexipol’s suspension or termination of the Service in accordance with the Terms; (f) Exceeding Lexipol’s published Concurrent Request Limits; (g) Software that has been subject to unauthorized modification by Agency; (h) Negligent or intentional misuse of the Service by Agency.
Exhibit C
Agency-Specific Terms and Conditions
The following provisions are incorporated into the Agreement between Agency (“ANAHEIM” and Lexipol (“CONSULTANT”) and shall have the same effect as those contained within Exhibit B.
Insurance.
Without limiting ANAHEIM’S right to indemnification, it is agreed that CONSULTANT shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence.
Commercial General Liability Insurance, including coverage for Premises and Operations,Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Sexual Abuse and Molestation and Independent CONSULTANT’S Liability, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible of not more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement. (This coverage written with a Self-Insured Retention can be submitted for approval by the Risk Manager prior to the inception of the final Agreement.)
Comprehensive Automobile Liability Coverage including—as applicable—owned, non-owned, and hired autos, in an amount not less than $1,000,000 per occurrence, combined single limit, as required by California law.
Professional Liability Insurance in an amount not less than $2,000,000.00 per occurrence, and CONSULTANT shall maintain such coverage for at least one (1) year from the termination of this Agreement. Such insurance shall be written on a primary basis, but may include a deductible of not more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement. (This coverage written with a Self-Insured Retention can be submitted for approval by the Risk Manager prior to inception of the final Agreement.)
Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
“This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium that shall provide for not less than ten (10) days’ notice.”
Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“It is agreed that any insurance maintained by CONSULTANT pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim.”
“The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM- designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
Prior to commencing any work under this Agreement, CONSULTANT shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, CONSULTANT shall provide ANAHEIM (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to ANAHEIM evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A.
M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to ANAHEIM, with prior written permission from ANAHEIM. In the event that a claim or other legal action is filed against ANAHEIM, and if ANAHEIM, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action.
In addition to other remedies ANAHEIM may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
- Order CONSULTANT to stop work under this Agreement and/or withhold any payment(s) that become due to CONSULTANT hereunder until CONSULTANT demonstrates compliance with the requirements hereof;
- Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for CONSULTANT’S failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed in any way as limiting the extent that an CONSULTANT may be held responsible for payments of damages to persons or property resulting from CONSULTANT’S, (or CONSULTANT’S AGENT or SUB-AGENT, if any) performance of the work covered under this Agreement.
In the event CONSULTANT hires other persons or firms to perform some of the work related to this Agreement, CONSULTANT shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of CONSULTANT under this Agreement (except for firms that are not performing professional services— such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, CONSULTANT shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
ANAHEIM’S Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such reduction is in ANAHEIM’S best interest.
Indemnity.
As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, arising directly out of the negligent acts, errors or omissions of the CONSULTANT or any SUB-AGENT in the performance of professional services under this Agreement.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONSULTANT, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, CONSULTANT agrees to indemnify, defend (at ANAHEIM'S option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with CONSULTANT’S (or CONSULTANT'S AGENT or SUB-AGENT, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of ANAHEIM.